166 F.

3d 1221
1999 CJ C.A.R. 561
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Fernando HERNANDEZ, also known as Fernie Hernandez,

Petitioner-Appellant,
v.
Tim LEMASTER; Attorney General for the State of New
Mexico,
Respondents-Appellees.
No. 98-2042.

United States Court of Appeals, Tenth Circuit.

Jan. 28, 1999.

Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.

1ORDER AND JUDGMENT*

2

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). Therefore, the
case is ordered submitted without oral argument.

Petitioner Fernando Hernandez, a state prisoner appearing pro se, appeals the
district court's dismissal of his 28 U.S.C. 2254 habeas petition on statute of
limitations grounds. We affirm.

Hernandez pleaded guilty to several state crimes in 1995 and was sentenced to
twenty-five years' imprisonment. He did not file a direct appeal. On April 17,

1997, he attempted to file a habeas petition in state court, but his petition was
not properly filed until July 6, 1997. The petition was denied on July 11, 1997,
and certiorari was denied by the state supreme court on July 23, 1997.
Hernendez allegedly "applied immediately with [prison authorities] for a copy
of [his] inmate account edger [which] is required to file an application for a
copy of this habeas corpus in Federal Court." Hernandez' Memorandum Br. at
3. He allegedly "received this (IFC) inmate financial certificate on August 7,
1997." Id. He filed his federal habeas petition on August 8, 1997, accompanied
by his request to proceed in forma pauper and his inmate financial certificate.
The district court adopted the magistrate's recommendation dismissed motion
the petition. The district court issued a certificate of appealability.
5

The Antiterrorism and Effective Death Penalty Act of 1996(AEDPA) amended

the "long-standing prior practice in habeas petition in federal court." Hoggro v.
Boone, 150 F.2d 1223, 1225 (10th Cir.1998). The AEDPA established a oneyear time limitation for filing petitions and mandated that the period begin to
run on the "date on which the judgment [of conviction] became final by the
conclusion of direct review or the expiration of the time for seeking such
review." 28 U.S.C. 2244(d)(1)(A). To avoid potential injustices, we have held
that for prisoners "whose convictions became final before April 24, 1996."
Hoggro, 150 F.3d at 1225. The AEDPA identifies a number of circumstances
requiring a tolling of the limitations period. See 28 U.S.C. 2244(d)(1) & (2).
In particular, "[t]he time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward" the one-year time limit.
2244(d)(2). We have also indicated the one-year period of limitations "may be
subject t equitable tolling." Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert.
denied, 119 S,Ct. 210 (1998).

Hernandez asks us to toll not only the time during which his state postconviction proceedings were pending (June 6 to July 23, 1997), but also (1) the
time from April 17 until June 6, 1997, while he was communicating with the
state court regarding proper filing of his post-conviction application, (2) the
time from July 23 to July 28, 1997, while he was allegedly waiting to receive a
copy of the state supreme court's denial of certiorari, and (3) the time from July
28 to August 7, 1997, while he was allegedly waiting for prison officials to
complete his inmate financial certificate.

Although we are bound by statute to toll the time during which his state postconviction proceedings were pending, we refuse to equitably toll any other
time. In Miller, we indicate equitable tolling principles apply only where a
prisoner has diligently pursued federal habeas claims. 141 F.3d at 978. See

Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998) (one-year limitation period
of AEDPA will be equitable tolled only "in rare and exceptional
circumstances"); Miller v. New Jersey State Dept. of Corrections, 145 F.3d
616, 618-19 (3d Cir.1998) (equitable tolling applies only where prisoner has
diligently pursued claims but has in some "extraordinary way" been prevented
from asserting rights). Here, there is no indication in the record that Hernandez
took any steps to pursue his federal claims between April 24, 1996, and April
17, 1997. Hernandez' one-year period of limitation expired on April 23, 1997,
prior to his filing of an application for post-conviction relief in state court.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3